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In my feature on asset forfeiture for the February issue of Reason, I looked specifically at how civil forfeiture was being abused in the state of Indiana. Remember that Indiana’s constitution requires that any forfeiture proceeds go to the state’s public schools fund, though prosecutors can reimburse their own offices and police departments for the cost of conducting investigations. The schools fund requirement helps offset the perverse incentives when police departments and prosecutor offices directly benefit from the property they seize.

But Indiana law enforcement officials have gotten around the requirement by greatly overestimating the cost of investigations, or by settling with property owners out of court (meaning the property wasn’t officially “seized”). Worse, many Indiana counties have actually made the incentive problem worse by contracting forfeiture cases to private attorneys, who then get a cut of what they win in court. Delaware County Prosecutor Mark McKinney was actually prosecuting criminal drug cases while also representing the county as a private attorney in civil forfeiture cases, where he’d get a cut of what he won. The Indiana Supreme Court will soon determine McKinney’s punishment, though the county judge who oversaw the ensuing the investigation has recommended only a reprimand.

Over the last several months, the Indianapolis Star has been investigating the state’s forfeiture abuses. The paper published its second installment over the weekend. A few highlights:

Indianapolis law enforcement officials have a broader — and more lucrative — interpretation of law enforcement costs. They argue that the phrase simply means the cost of enforcing the law in Marion County, and thereby justify holding on to every dollar of the nearly $1.6 million the county received from state forfeiture cases in 2009.

“We don’t break it down on a case-by-case basis,” said Lawrence Brodeur, chief of Marion County’s strategic narcotics prosecution division. “That doesn’t make any sense. You could have one case where the officer makes a simple traffic stop, and there could be a quarter-million in cash that we seize. There could be months and months and months on another case, and we catch the guy with a lot of dope but not a lot of cash. Law enforcement, as you know, is more than one case at a time.”

Assets forfeited in Marion County flow into a designated law enforcement fund that benefits the Indianapolis Metropolitan Police Department and the Marion County prosecutor’s office.

But even Brodeur’s definition of law enforcement costs is not as broad as the one endorsed by Putnam County Prosecutor Tim Bookwalter. In 2008, he made a $28,000 donation to fund spay/neuter services at the local Humane Society with forfeiture money. His argument: Stray dogs are a law enforcement problem.

Bookwalter and Putnam County were part of my story in February. Christopher Gambill, the private attorney who handles forfeiture cases for Putnam County, once made a $113,145.67 commission off a single case. That’s more than all 92 Indiana counties have paid into the schools fund over the last two years combined.

More from the Star:

In Knox County, after council members started trying to keep a closer watch on Sheriff Stephen Luce’s spending, Luce simply circumvented them.

“The sheriff at that time felt like it was his money and his slush fund,” County Council President Tim Ellerman said. “He was wanting to buy sniper rifles. Down here we don’t really need sniper rifles with lasers because very seldom do we have hostage situations. Once we started scrutinizing, then all of the sudden the money stopped coming in.”

But not really. A 2007 audit revealed that police had not stopped seizing forfeiture funds. Nor had Luce stopped spending them. He had simply begun funneling the money straight from law enforcement coffers into his creditors’ pockets, without ever depositing the money with the county or asking the permission of County Council members.

For example, the 2007 audit found that after a public sale of seized assets, the attorney handling forfeitures for the prosecutor’s office had written an $8,000 check — not to the county, but to Vincennes Ford, to pay for a vehicle. Kurt Webber, an attorney the council hired to sort out the mess, found that Luce had been buying police vehicles on credit, without council authorization, since 2003 and using forfeiture funds to pay them off.

Luce left the department during the investigation. He’s now head of the Indiana Sheriff’s Association. The entire Star report is worth reading. Particularly interesting are the broad definitions of what constitutes a settlement, for purposes of allowing forfeited property to go back to the department instead of the schools fund. Until 2008, for example, police officers in Putnam County could negotiate a “settlement” on the side of the road, giving motorists the option of either facing an arrest and drug charges, or simply forfeiting all of their cash, at which point they’d be sent on their way. Gambill helpfully explains how this policy was effective at separating drug mules from their ill-gotten cash. Of course, it would also be effective at getting cash out of anyone who’d rather fork over some money than face the prospect of arrest, detainment, and felony charges.

Putnam County says it no longer allows such shakedowns settlements, but the Star notes that there’s nothing in Indiana law preventing it from being used there or in other counties.

29 Responses to “More on Indiana’s Forfeiture Racket”

You could have one case where the officer makes a simple traffic stop, and there could be a quarter-million in cash that we seize. There could be months and months and months on another case, and we catch the guy with a lot of dope but not a lot of cash.

Until 2008, for example, police officers in Putnam County could negotiate a “settlement” on the side of the road, giving motorists the option of either facing an arrest and drug charges, or simply forfeiting all of their cash, at which point they’d be sent on their way.

Holy poop on a stick! That’s pretty impressive. I don’t know if the old “if it walks like a duck, and it quacks like a duck” saying is a sound legal argument, but that sounds like the most straightforward case of soliciting a bribe you are ever likely to hear. And yet it was somehow official government policy and nobody is in prison?

I got a similar solicitation over a bogus traffic offense some 30 years ago. We stood the guy down with a combination of crying poor (we were) and questioning the propriety of such payments (he said we had to pay the fine on the side of the road). Nobody questioned the fact that we were being shaken down, not even the cop. And when the boys from the state found out, the Sheriff’s office got busted and disbanded. (not on the strength of my 17-year-old-kid testimony, somebody else handled that one). I thought the shakedowns had gotten more sophisticated. It is like we are living in some tin-pot dictatorship…

Also noted in the article – the same prosecutor might handle the criminal prosecution and the asset forfeiture. In one case this (allegedly) led to the prosecutor threatening the guy’s wife with arrest if she didn’t pay off the $12k loan on her Kia and sign it (and another $100k in cash and assets) over to the state.

The prosecutor then personally drove the Kia for the next two years. He claims no such quid pro quo existed. He also claims nice guy status because he didn’t take the Jaguar.

Stray dogs a law enforcement problem? What the heck? I thought they just shot them dead. How much of a problem could it be to shoot a 50 lb dog? Oh right, then whiners like Radley try to use their acts of puppycide to make them look bad. Don’t you see how much of a nuisance you are Radley?

The system of civil asset forfeiture absolutely encourages shakedowns, both in direct terms of cash and in terms of any accompanying prosecution by a DA who might want to bump his numbers with a few cheap plea deals. Even a weak case against someone can seem a lot stronger and bully her into accepting a plea deal in those cases. E.g., “We found you with a couple joints and $1000 in cash. You may claim that’s for Christmas shopping, but we think you are involved in a drug deal. So, you can turn over the cash and plead to misdemeanor possession or we can seize the cash and your car (where we found the pot) and track down your pot supplier and get him to say you were selling for him. Even if the charges never stick, you’ll spend thousands more defending yourself against a felony charge (unless you use the court-appointed attorney, who has about a hundred cases on his desk and who will tell you to just take the plea, heh-heh-heh) and, if you win, you’ll still have spend more to fight to get your cash and car back in a separate proceeding. What’s it gonna be?”

But, the basic problem is that it’s “civil” asset forfeiture. As in “the government never has to prove you were involved in any criminal activity to take your stuff” asset forfeiture. Civil asset forfeiture just shouldn’t exist for law enforcement. If they want to seize the asset acquired as part of a criminal enterprise, then convict the criminals and then seize their stuff. Simply, if they say there is a crime, then prove it and use criminal asset forfeiture.

Another insidious part of this is that the government gets to look like heroes doing it because many people (who probably don’t read The Agitator) presume the guilt of anyone a cop calls a criminal. So, the prosecutor gets to frame all of these cases in terms of “we’re confiscating drug money from drug dealers” when, in fact, they haven’t proven their target was a drug dealer at all. Of course, it wouldn’t sound as righteous to say, “We are going to accuse this guy of drug dealing, but we are taking his stuff regardless of whether we ever convict him of any crime, or even ever charge him with a crime.” In that second (more accurate) phrasing, it is a lot easier for the average Joe to understand that he could be the one accused, since the government never has to prove anything.

That prosecutor who gave money to the spay/neuter program and claimed it was a legitimate part of the law enforcement budget has a pretty convenient set of definitions. I wonder if the IRS would accept that sort of thing as a legitimate business expense for a private business. E.g. if a company that pays for private security gave $28,000 to an animal shelter and wrote it off as an expense because stray dogs are a problem his security has to deal with, how long would the IRS look at that write-off before shouting “Audit! We’ve got a live one!”?

More importantly, I wonder if that prosecutor would use such a broad definition if he thought that write-off impacted the taxes that go to fund his department…

freedomfan, if the contribution goes to an IRS recognized non-profit corporation for which contributions are tax deductible and the donation is an arms length transaction it’s hardly likely that the the IRS would even fart in the general direction of the donor.

Now if the prosecutor’s wife is a cat lady and they set up a “Save the Kitties” non-profit with his wife as director and direct the contribution there which is used to pay her salary they’d better be able to show that she’s really involved in cat rescue.

My businesses have made significant (for me) contributions to drug law reform groups, with the most recent being sent to the yesonprop19 people. It just makes the most sense financially plus there’s still a part of me that doesn’t like my name being directly attached to drug law reform. But if I had Soros wealth it would be me that the Know Nothings call the devil in human form rather that Mr. Soros. I’m sure Mr. Soros has a good staff of top notch professionals taking care of his taxes and therefore possible that he might not even hear that he’s been audited.

Gambill helpfully explains how this policy was effective at separating drug mules from their ill-gotten cash. Of course, it would also be effective at getting cash out of anyone who’d rather fork over some money than face the prospect of arrest, detainment, and felony charges.

I don’t know what is more disturbing. That a cop (or anyone else for that matter) wouldn’t see that as simply soliciting bribes or that a cop (or anyone else for that matter) would believe that anyone with a brain would fall for such a lie.

It’s getting more and more difficult to distinguish between the police and a criminal street gang or the mafia. I suppose that’s why the cops wear those costumes so we can tell which criminals we can legally shoot when we’re being robbed and which ones we can’t.

@19 The difference is that cop isn’t putting the money into his own pocket, so it’s not a bribe.

Whether something is a bribe has nothing to do with whether it goes into the pocket of an individual or an organization. It has only to do with paying someone to illegally influence their behavior. When a cop lets someone go in exchange for cash, it’s a bribe. But, perhaps I could have used a more descriptive word. Like, say, extortion.

Having lived in countries where it’s routine for cops to run a roadside shakedown I can tell you that it’s better there.

I spent a semester in Vietnam back in college (2004), and a few of us got tied up with the police once because of an error the customs guy made when he stamped our visas. It was painfully obvious that all they wanted was a payoff. We gave them the equivalent of like 20 bucks, they shook our hands, and we were on our way.

Dave Krueger “Whether something is a bribe has nothing to do with whether it goes into the pocket of an individual or an organization. It has only to do with paying someone to illegally influence their behavior. When a cop lets someone go in exchange for cash, it’s a bribe. But, perhaps I could have used a more descriptive word. Like, say, extortion.”

Yea in a way it’s actually worse. I mean, if the cop puts the money in his pocket the motivation to steal from you is pretty obvious but the fact that they’re willing to steal from you with no direct benefit for themselves shows the solidarity and groupthink that gives them that “us vs. them” mentality.

@aerikson, “Dogs Playing Poker” is probably my favorite painting. Dogs do so many things when we’re not looking. Wow, did you know that the original sold for almost $600,000 in 2005? Oh wait that’s 2 works were sold together. Still, more than a 1/4 million bucks for a “dogs playing poker”?!?http://money.cnn.com/2005/02/16/news/newsmakers/poker_dogs/

For the dyslexic art connoisseur there’s a painting called “gods playing poker”